Wasif v. Khan

• Citation: 2011 N.Y. Slip Op. 02378,919 N.Y.S.2d 203,82 A.D.3d 1084
• Parties: Aneela WASIF, et al., appellants,v.Nawaz KHAN, respondent.
• Decision Date: 22 March 2011
• Court: New York Supreme Court Appellate Division

82 A.D.3d 1084
919 N.Y.S.2d 203
2011 N.Y. Slip Op. 02378

Aneela WASIF, et al., appellants,
v.
Nawaz KHAN, respondent.

Supreme Court, Appellate Division, Second Department, New York.

March 22, 2011.

[919 N.Y.S.2d 203]

Grover & Fensterstock, P.C., New York, N.Y. (Ernest T. Lawson of counsel), for appellants.

[919 N.Y.S.2d 204]

PETER B. SKELOS, J.P., JOSEPH COVELLO, RANDALL T. ENG, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.

[82 A.D.3d 1084] In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated March 5, 2010, which granted the defendant's motion pursuant to CPLR 3216 to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3216 to dismiss the complaint is denied.

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Since CPLR 3216 is a [82 A.D.3d 1085] legislative creation and not part of a court's inherent power ( see Airmont Homes v. Town of Ramapo, 69 N.Y.2d 901, 902, 516 N.Y.S.2d 193, 508 N.E.2d 927; Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 248, 303 N.Y.S.2d 633, 250 N.E.2d 690), the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action ( see Airmont Homes v. Town of Ramapo, 69 N.Y.2d at 902, 516 N.Y.S.2d 193, 508 N.E.2d 927; Rose v. Aziz, 60 A.D.3d 925, 926, 874 N.Y.S.2d 816; Harrison v. Good Samaritan Hosp. Med. Ctr., 43 A.D.3d 996, 997, 843 N.Y.S.2d 123; Schuering v. Stella, 243 A.D.2d 623, 624, 663 N.Y.S.2d 232).

The defendant's purported 90–day demand dated September 1, 2009, served upon the plaintiffs, was defective on its face, as it failed to demand that the plaintiffs serve and file a note of issue ( see CPLR 3216[b]; Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1024, 885 N.Y.S.2d 110). Furthermore, a so-ordered stipulation filed October 29, 2009, which extended the plaintiffs' time to file a note of issue to January 22, 2010, could not be deemed a 90–day demand since it failed to advise the...